This Article, published as part of a Symposium on “The Rehnquist Court and the First Amendment,” responds to another Article, titled “Property and Speech,” by Professor Robert A. Sedler. In the Article, Professor Saxer builds upon Professor Sedler’s analysis that the First Amendment can be used as a “sword” against property owners who seek to exclude free expression with claims of private ownership rights and as a “shield” against government attempts to restrict individual rights by regulating property use. While Professor Sedler concludes that, because the First Amendment has been used to significantly interfere with property rights, protection of free expression is strong in the United States, Professor Saxer posits that such a conclusion may show just how weak property rights have become. Professor Saxer argues that the Rehnquist Court has reduced the protection of private property rights against government action, while restricting private property owners’ rights to exclude private actors who trespass or substantially interfere with their use and enjoyment of property interests.

Professor Saxer also addresses a category of government action not mentioned by Professor Sedler – the government’s use of eminent domain, which can be used as a “sword” against undesirable land uses, even if those uses are protected by the First Amendment. Professor Saxer contrasts the treatment of church property and adult businesses in the eminent domain context. The Religious Land Use and Institutionalized Persons Act (RLUIPA) acts as a “shield” against government land use decisions that impact religious land uses by requiring heightened judicial scrutiny. However, adult business land uses are not similarly protected against eminent domain actions.

Ben Barros

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